8.  The applicant, who is of Roma ethnic origin, was born in 1980 and lives in Jarovnice. She finished compulsory education in the sixth grade and is unemployed. Her mother tongue is the Roma language, which she uses in daily communication, together with a local dialect.
9.  On 23 August 2000 the applicant was sterilised while hospitalised at the Hospital and Health Care Centre in Prešov (now known as the University Teaching Hospital and J.A. Reiman Health Care Centre in Prešov –“Prešov Hospital”), which came under the management of the Ministry of Health.
10.  The procedure was carried out during the delivery of the applicant’s second child via Caesarean section. The applicant’s first delivery had also been via Caesarean section. The sterilisation of the applicant entailed tubal ligation by the Pomeroy method, which consists of severing and sealing the Fallopian tubes in order to prevent fertilisation.
11.  During her pregnancy the applicant did not have any regular check‑ups. She visited her general practitioner only once.
12.  The applicant was admitted to the gynaecology and obstetrics department of Prešov Hospital on 23 August 2000 shortly before 8 a.m. She came to the hospital in pain resulting from the progress of labour. On arrival the applicant was informed that the delivery would be via Caesarean section.
13.  The delivery was documented in a written record indicating details of the labour and birth at regular intervals. The first entry in the record was at 7.52 a.m. The applicant was subsequently monitored by CTG (cardiotocography); the last CTG entry was at 10.35 a.m.
14.  According to the delivery record, after 10.30 a.m., when labour was well established, the applicant requested sterilisation. That request is entered directly in the delivery record with the typed words “Patient requests sterilisation”. Below this is the shaky signature of the applicant. The signature was in an unsteady hand and the applicant’s maiden name, which she used at the time, is split into two words.
15.  The applicant submitted that, after she had been in labour for several hours and was in pain, the medical personnel of Prešov Hospital had asked her whether she wanted to have more children. The applicant responded in the affirmative but was told by the medical personnel that if she had one more child, either she or the baby would die. The applicant started to cry and as she was convinced that her next pregnancy would be fatal, she told the medical personnel “Do what you want to do”. She was then asked to sign the delivery record under the note indicating that she had requested sterilisation. The applicant did not understand the term sterilisation and she signed the form out of fear that there would otherwise be fatal consequences. As she was in the last stage of labour, her recognition and cognitive abilities were influenced by labour and pain.
16.  At 11.30 a.m. the applicant was put under anaesthesia, after which the delivery was completed via Caesarean section. In view of the state of the applicant’s reproductive organs the two doctors involved asked the head physician for an opinion as to whether they should perform a hysterectomy or a sterilisation. They subsequently performed tubal ligation on the applicant. The procedure ended at 12.10 p.m. and the applicant came round from the anaesthetic ten minutes later.
17.  The words “Patient is of Roma origin” appear in the record of the applicant’s pregnancy and delivery (section “Medical history”, sub-section “Social and working conditions, especially during the pregnancy” of the pre-printed form designed for that purpose).
18.  During her hospitalisation on the gynaecology and obstetrics ward of Prešov Hospital the applicant was accommodated in a room in which there were exclusively women of Roma ethnic origin. She was prevented from using the same bathrooms and toilets as women who were not of Roma origin.
19.  The applicant has suffered serious medical and psychological after‑effects from the sterilisation procedure. Hence, at the end of 2007 and the beginning of 2008 she displayed the symptoms of a false pregnancy. She believed that she was pregnant and exhibited all the signs of pregnancy. However, the ultrasound examination revealed that she was not pregnant. Subsequently, in July 2008, she was treated by a psychiatrist in Sabinov. According to the latter’s statement, the applicant continues to suffer as the result of her infertility.
20.  The applicant has also been ostracised by the Roma community. Her husband, the father of her children, left her several times owing to her infertility. In 2009 the applicant and her husband divorced. The applicant maintained that her infertility was one of the reasons for their separation.
21.  A written statement by the Director of Prešov Hospital dated 3 July 2008 indicates that the applicant’s first delivery in 1998 ended with a Caesarean section as the size of the applicant’s pelvis excluded a normal delivery. Prior to the delivery the applicant had attended a pre-natal care centre only twice, at the beginning of her pregnancy. After the delivery she was placed in a post-delivery room with sanitary equipment where she received medical care. On the third day she left the hospital without doctors’ consent and returned 24 hours later with sepsis caused by inflammation of the uterus. After nine days’ hospitalisation during which she received intensive treatment with antibiotics the applicant and her child were discharged from the hospital. The applicant was advised to visit a gynaecologist regularly but failed to do so.
22.  During her second pregnancy, the applicant visited the pre-natal care centre only once, in the initial stages. At the time of the second delivery, owing to pain which the applicant experienced in the lower part of her uterus (where she had been operated on during her first delivery) and in view of the size of her pelvis, doctors indicated that a Caesarean section would be needed. They were of the view that there was a risk of rupture of the uterus. After they had explained to her the situation and the risks inherent in a possible third pregnancy, the applicant, who was fully aware of what was happening, signed the sterilisation request.
23.  In a different statement dated 27 July 2009 the Director of Prešov Hospital denied deliberate and organised segregation of Roma women and the existence of so called “Gypsy rooms”. In practice, Roma women were frequently accommodated together at their own request.
24.  On 23 January 2003, in response to the publication by the Centre for Reproductive Rights and the Centre for Civil and Human Rights of “Body and Soul: Forced and Coercive Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia” (“the Body and Soul Report”), the Section for Human Rights and Minorities of the Government Office initiated a criminal investigation into the allegedly unlawful sterilisation of several different Roma women.
25.  The criminal investigation was conducted within the Regional Directorate of the Police Corps in Žilina by the Office of the Judicial and Criminal Police. Several decisions were issued by the investigator, public prosecutors at several levels and the Constitutional Court. The proceedings were ultimately discontinued on the ground that no offence had been committed in the context of the sterilisation of women of Roma ethnic origin (further details are set out in I.G., M.K. and R.H. v. Slovakia (dec.), no. 15966/04, 22 September 2009).
26.  The applicant did not initiate any individual criminal proceedings.
27.  In January 2003, after the release of the Body and Soul Report, the applicant learned that a tubal ligation was not life-saving surgery as alleged by the medical personnel of Prešov Hospital and that the patient’s full and informed consent to such a procedure was required. For this reason, she unsuccessfully tried to review her medical records. She was allowed access to her medical file with her lawyer in May 2004 following a judicial order to that effect.
28.  On 9 September 2004 the applicant lodged a claim with the Prešov District Court under Articles 11 et seq. of the Civil Code, seeking protection of her personal rights. She submitted that the sterilisation performed on her had been carried out in violation of Slovakian legislation and international human rights standards including Articles 3, 8, 12 and 14 of the Convention. The applicant argued that she had not been duly informed about the procedure as such, its consequences and alternative solutions. She requested an apology for the procedure and claimed compensation for non-pecuniary damage.
29.  In the course of the proceedings the District Court considered documentary evidence and obtained a number of statements from the applicant as well as from the medical personnel of Prešov Hospital.
30.  In particular, the applicant described the circumstances in which she had given birth in Prešov Hospital and how she had been asked to sign the relevant entry in the record. She also stated that the father of her children had left her for two years owing to her infertility and that they had experienced problems in their relationship for that reason. She outlined the health problems which she was experiencing.
31.  Doctor Č. of Prešov Hospital, who had performed the procedure on the applicant, stated that he did not specifically remember the applicant or the circumstances of her hospitalisation. His statement was based on the information in the applicant’s medical file. He alleged that the applicant had been fully informed about her medical condition and the progress of the labour approximately ninety minutes prior to the delivery. The information about the need for sterilisation had been conveyed to her by the head doctor of the gynaecology and obstetrics ward, as well as the second doctor who had participated in the surgery, and also by the anaesthetist. The sterilisation had been carried out at the applicant’s request as a medical necessity. A possible third pregnancy could have been risky for the applicant unless she was monitored regularly during the pregnancy. Doctor Č. stated that the sterilisation of the applicant had not been life-saving surgery.
32.  Doctor K., head doctor of the gynaecology and obstetrics ward of Prešov Hospital, stated that he fully agreed with the testimony of Doctor Č. Doctor K. did not specifically recall the case of the applicant either. He assumed that her case was the same as other similar cases. He had not been present during the delivery and the sterilisation of the applicant but had been told about her case by other doctors. He described the sterilisation procedure as governed by the relevant law. In the case of the applicant, there had been no time to convene any committee as she had come to the hospital a very short time before delivery.
33.  Doctor K. further stated that, after he had designated his colleagues Š. and Č. to perform the surgery, he had also asked them to find out whether the patient would agree to sterilisation, and to have her consent confirmed by a signature. Even if a patient refused to give written consent to sterilisation, it could be carried out under section 2 of the 1972 Sterilisation Regulation, which permitted such a move in the case of danger to a person’s life.
34.  In the civil proceedings, the applicant also submitted a psychologist’s assessment of her mental capacity dated 17 February 2006. It indicated that her intellectual capacity was very low, on the verge of mental retardation, but that her thinking was well developed in relation to practical issues. The psychologist concluded that communication with the applicant needed to be adapted to her mental and language skills. No mental illness was detected that would prevent the applicant from making decisions concerning her life and assuming responsibility for matters related to her life.
35.  On 28 February 2006 the Prešov District Court dismissed the action. It held that the procedure had been performed only after the medical personnel had obtained the applicant’s signature. It admitted that the applicant’s signature on the delivery record had been obtained shortly before the Caesarean section was performed, when the applicant had been in “a supine position”. The procedure had been performed on medical grounds. It had been necessary owing to the applicant’s poor medical condition. The medical personnel had proceeded in accordance with the law.
36.  The fact that the procedure had not been approved earlier by a sterilisation committee amounted only to a failure to meet the formal requirements; it could not have interfered with the applicant’s personal integrity as protected by Articles 11 et seq. of the Civil Code. No violation of the applicant’s rights under the Convention had been established.
37.  Finally, the District Court held that the applicant’s situation was not irreversible as there was a possibility of in vitro fertilisation.
38.  On 12 May 2006 the applicant appealed. She maintained that she had been sterilised without her full and informed consent in a situation where she had not been able to understand fully the nature and consequences of the procedure. There were gaps and inconsistencies in the statements of the medical personnel and the medical file contained no record of her having been duly informed about the procedure, its irreversible character and the alternative methods. In violation of the legislation in force the sterilisation had not been approved by a sterilisation committee. A tubal ligation could not be considered as life-saving surgery. The applicant relied on documents issued by international medical organisations.
39.  On 25 October 2006 the Prešov Regional Court upheld the first‑instance judgment. It concluded that the applicant’s sterilisation had been performed in accordance with the legislation in force and that it had been required by her medical condition.
40.  The appellate court referred to the statements by the physicians involved and held that there had been a risk of rupture of the applicant’s uterus. The applicant had requested sterilisation after she had been duly informed of her state of health. The procedure had complied with the relevant provisions of the 1972 Sterilisation Regulation. The decision as to whether or not sterilisation was required lay in such circumstances with the head physician. Prior approval by a sterilisation committee was required only where sterilisation was to be carried out on healthy reproductive organs. However, this had not been the case with the applicant.
41.  On 17 January 2007 the applicant lodged a complaint with the Constitutional Court. With reference to her sterilisation and the ordinary courts’ conclusions in the above-mentioned civil proceedings, she submitted that she had been subjected to sterilisation in Prešov Hospital without her informed consent and that she had been unable to obtain redress as a result of the conduct and decision of the Prešov Regional Court. She alleged that the latter had thereby breached her constitutional rights and freedoms prohibiting discrimination and cruel, inhuman or degrading treatment or punishment, her right to protection from unjustified interference with her private and family life and her right to protection of her family, as well as her rights under Articles 3, 8, 12, 13 and 14 of the European Convention on Human Rights and Article 5 of the Convention on Human Rights and Biomedicine. The applicant requested that the Constitutional Court quash the Regional Court’s judgment.
42.  On 14 February 2008 the Constitutional Court dismissed the complaint as being manifestly ill-founded (for further details see the decision on the admissibility of the present application of 16 June 2009).
43.  The applicant referred to a number of publications pointing to a history of forced sterilisation of Roma women which had originated under the communist regime in Czechoslovakia in the early 1970s and which she believed had influenced her own sterilisation.
44.  In particular, the applicant submitted that the Ministry of Health’s 1972 Sterilisation Regulation had been used to encourage the sterilisation of Roma women. According to a 1979 document by Charter 77, a Czechoslovakian dissident group, a programme had been launched in Czechoslovakia offering financial incentives for Roma women to be sterilised because of earlier unsuccessful government efforts “to control the highly unhealthy Roma population through family planning and contraception.”
45.  The applicant further maintained that in Prešov District 60% of the sterilisation operations performed from 1986 to 1987 had been on Roma women, who represented only 7% of the population of the district. Another study found that in 1983 approximately 26% of sterilised women in eastern Slovakia (the region where the applicant resides) were Roma; by 1987, this figure had risen to 36.6%.
46.  In 1992 a report by Human Rights Watch noted that many Roma women were not fully aware of the irreversible nature of the procedure and were forced into it because of their poor economic situation or pressure from the authorities.
47.  According to other reports, in 1999 nurses working in Finnish refugee reception centres informed researchers from Amnesty International that they had noticed unusually high rates of gynaecological procedures such as sterilisation and removal of ovaries among female Roma asylum‑seekers from eastern Slovakia. All the reports cited identified Prešov Hospital as one of the hospitals where such sterilisation practices were applied.[1]
48.  The Government submitted that health care in Slovakia was provided to all women equally. Statistical data based on the ethnic origin of patients were generally not gathered as this was considered to be contrary to persons’ human rights.
49.  Following the publication of the Body and Soul Report the Ministry of Health established a group of experts with a view to investigating allegedly unlawful sterilisations and segregation of Roma women.
50.  The Ministry’s report of 28 May 2003, submitted to the parliamentary committee on human rights, nationalities and the status of women, indicated that the medical records of 3,500 women who had been sterilised and those of 18,000 women who had given birth by means of Caesarean section during the preceding ten years had been reviewed.
51.  The rate of sterilisation of women in Slovakia amounted to only 0.1% of women of reproductive age. In other European countries that rate was between 20 and 40%. The low rate of sterilisation in Slovakia was mainly due to the fact that the procedure was not widely used as a method of contraception.
52.  In the absence of official statistical data concerning the ethnic origin of inhabitants, the expert group could assess only indirectly the position regarding women of Roma ethnic origin. In those regions where it was possible to indirectly assess the proportion of women of Roma ethnic origin, the frequency of sterilisation and Caesarean section in the Roma population was significantly lower than among the rest of the population. The frequency of sterilisations was statistically insignificantly higher in the Prešov and Košice regions than in other regions of Slovakia.
53.  The group concluded that in the hospitals investigated by its members no genocide or segregation of the Roma population had occurred. All cases of sterilisation had been based on medical indications. Certain shortcomings in health care and non-compliance with the regulations on sterilisation (such as failure to observe the administrative procedure) had been identified in several cases. However, they affected the whole population equally regardless of patients’ ethnic origin. Hospitals in which administrative errors had been discovered had adopted measures with a view to eliminating them.
54.  In none of the hospitals visited by the expert group did there exist separate rooms for Roma women; all patients received treatment within the same hospital facilities. Owing to the situation existing during the preceding decades, medical personnel and individuals were not on an equal footing with regard to responsibility for maintaining and improving individuals’ state of health. This was reflected, in particular, in limited individual rights and responsibilities in matters of health care. Measures had been recommended to ensure that individuals received the necessary information to enable them to give informed consent to their treatment or refuse it. Individual requests for medical intervention were to be made in a legally valid manner permitting the persons concerned to express their own free will after receiving the appropriate information.
55.  The measures recommended in the report consisted in the amendment of the legal rules on sterilisation with a view to ensuring compliance with, inter alia, the Convention on Human Rights and Biomedicine, which Slovakia had ratified. The report also contained a set of recommendations regarding the education of medical staff, focusing on “cultural differences in regions with an increased concentration of Roma communities”. In order to educate the Roma population in the area of health care, the Slovak Health University in Bratislava was to establish, in cooperation with the Ministry of Health, a network of health care assistants who would receive special training and operate in Roma settlements.
56.  At the hearing the Government indicated that it was open to women allegedly affected by malpractice in the context of sterilisation to claim compensation before the civil courts. According to the information available to the Government, there were five sets of proceedings of that kind pending before the Slovakian courts. Six other sets of proceedings had ended in a final decision. In three of them the claimants had been successful.